Delhi High Court
Brm Lease & Credit Limited vs Joginder Singh on 12 December, 2011
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. No.283/2011
Date of Decision : 12.12.2011
BRM LEASE & CREDIT LIMITED ...... Petitioner
Through: Mr.Ruchir Batra,
Advocate
Versus
JOGINDER SINGH ...... Respondent
Through: Nemo
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
V.K. SHALI, J. (oral)
1. This is a leave to appeal filed by the petitioner against
the judgment and order dated 21.04.2011 passed by
Ms.Bhavna Kalia, learned M.M., Patiala House Courts,
Delhi, whereby she had acquitted the respondent in a
complaint case titled M/s BRM Lease & Credit Vs.
Crl.L.P. No.283/2011 Page 1 of 8
Joginder Singh for an offence u/s 138 of the
Negotiable Instruments Act.
2. Briefly stated, the facts of the case are that in
October, 2003, the respondent entered into a lease-
cum-hypothecation agreement with the petitioner and
took an amount of `83,000/- repayable in 24
installments of `4535/- each. The amount was taken
for the purpose of purchase of a vehicle Tata Sumo.
The vehicle was hypothecated with the petitioner.
3. On 11.10.2004 the Tata Sumo is alleged to have met
with an accident and the repair cost of the vehicle
itself was assessed by the surveyor to be an amount
of `94,590/-. The respondent/accused never got it
repaired and after making payment of 11 installments,
he stopped paying the installments to the petitioners.
4. On 13.06.2006 after repeated demands the
respondent issued a cheque for a sum of `87,000/-
which was allegedly dishonored on 14.06.2006 on
account of 'insufficient funds'. The petitioner issued a
legal notice on 19.06.2006 and on 27.07.2006
Crl.L.P. No.283/2011 Page 2 of 8
petitioner filed the complaint against the respondent
u/s 138 of the Negotiable Instruments Act.
5. The petitioner produced the evidence in support of his
case and proved the documents. A notice u/s 138 of
the Negotiable Instruments Act was given to the
respondent/accused on 28.08.2008 and the petitioner
in support of its case examined CW-1 Brij Mohan
Wadhwa and he proved the documents cash receipts
Ex.CW-1/D1, (also numbered Ex.P1), CW-1/D2
photocopy of the statement of account etc. After
examining himself as a sole witness in support of the
complaint, the petitioner closed his evidence in
affirmative.
6. Statement of the accused was recorded who denied
that any amount was due and payable. On the
contrary, he took the plea that prior to the accident he
made a payment of `45,000/- on 01.02.2006 after
selling his house apart from 11 installments. This
amount of `45,000/- was treated as a full and final
settlement on behalf of the balance amount payable to
Crl.L.P. No.283/2011 Page 3 of 8
the petitioner and, therefore, there was no liability to
be discharged by him. The respondent/accused also
examined Chandra Prakash as DW-1 in support of his
defence who was also cross-examined.
7. The learned Magistrate after hearing arguments
arrived at a conclusion that the respondent/accused
has been able to dislodge the presumption of the
petitioner that the cheque for a sum of `87,202/- was
issued for the payment of any debt or liability.
8. It was also disbelieved by the learned Magistrate that
cheque of `45,000/- was issued on account of the
payment. On the contrary, learned Magistrate came
to the conclusion that the petitioner had accepted the
payment of cheque amount of `45,000/- towards the
full and final settlement and issued 'No Objection
Certificate', inasmuch as hypothecation of the vehicle
was discharged.
9. It was also observed that in a regular course of
business it is very unlikely that a financer would
terminate the hypothecation agreement without
Crl.L.P. No.283/2011 Page 4 of 8
recovering the entire loan amount. Thus, on the basis
of preponderance of probabilities the learned
Magistrate observed that since the presumption u/s
139 is rebutted by the respondent, therefore, the
respondent/accused was acquitted.
10. The learned counsel for the petitioner has sought
leave to contend that the learned trial Court has
committed a gross error in not appreciating the
evidence in correct perspective inasmuch as firstly the
cheque for a sum of `45,000/- was issued on account
and the receipt in this regard was issued by him;
secondly, the hypothecation of the vehicle was
terminated only with a view to permit the
respondent/accused to sell the vehicle, so that he is
able to retrieve some money by selling the vehicle,
which was in a damaged condition and he could make
the payment to the petitioner, as he had decided not
to get it repaired. It was contended that in cases
where hypothecation stands terminated, NOC is also
required to be issued and in the instant case this was
Crl.L.P. No.283/2011 Page 5 of 8
not done, therefore, in the absence of such a
certificate in possession of the respondent it was not
open to the learned Court to have acquitted the
respondent.
11. I have heard the learned counsel for the petitioner and
carefully considered the statements made by him. I
do not agree with the contentions of the learned
counsel for the petitioner on the ground that the
learned Magistrate was absolutely right in observing
that as the amount of `45,000/- was paid to the
petitioner notwithstanding the fact that the receipt
may show that it was on account but as the petitioner
had terminated the hypothecation agreement, this
clearly showed that this amount of `45,000/- was
accepted by the petitioner towards the full and final
settlement of his entire claim.
12. The plea of the petitioner that NOC was not issued is
inconsequential. Even if the NOC is issued normally by
virtue of a common course of business dealings only
when the complete liability is cleared it is unheard that
Crl.L.P. No.283/2011 Page 6 of 8
a financer would terminate the hypothecation without
retrieving the entire loan amount along with interest
payable by the borrower. Moreover, a case u/s 138
being a criminal case the quantum of proof which is
required to be proved by a party in order to procure
the conviction should be beyond 'reasonable doubt'.
No doubt, in a case u/s 138 by virtue of Section 139
there is a presumption of the cheque having been
issued for a legally payable debt or liability but this is
rebuttable presumption and has been rebutted by the
respondent/accused in a sufficient measure, not only
by way of his own statement, but also by producing
one defence witness who has proved the case of the
respondent. By this evidence once the presumption
gets dislodged it is, therefore, incumbent on the
petitioner to have rebutted this presumption either by
entering into witness box afresh or by producing any
other evidence which he has not chosen to do, despite
that he had closed his evidence in affirmative only.
Crl.L.P. No.283/2011 Page 7 of 8
13. I feel that the judgment and the order passed by the
learned Magistrate is perfectly legal and on account of
preponderance of probabilities when there are two
views possible of the benefit, same has to be
necessarily given to the accused which the learned
Magistrate has done in the instant case. I, therefore,
find absolutely no ground to grant the leave to the
petitioner to assail the order of acquittal passed by the
learned Magistrate.
14. For the reasons mentioned above, the leave to appeal
filed by the petitioner is accordingly dismissed.
15. File be consigned to Record Room.
V.K. SHALI, J.
DECEMBER 12, 2011
mr
